Standing Committee B

[Mr. James Cran in the Chair]

Criminal Justice Bill

Clause 36 - Application by defendant for trial to be conducted without jury

Amendment proposed: No. 285, in 
clause 36, page 23, line 29, at end add 
 'giving their reasons for the application.'.—[Mr. Allen.]

James Cran: With this it will be convenient to discuss the following amendments:
 No. 202, in 
clause 36, page 23, line 31, leave out 'must' and insert 'may'.
 No. 203, in 
clause 36, page 23, line 31, at end insert 
 'if he is satisfied that this will not compromise the defendant's right to a fair trial'.
 No. 232, in 
clause 36, page 23, line 32, leave out '(6), (7) or (8)'.
 No. 252, in 
clause 36, page 23, line 35, at end insert 
 'unless the judge orders separate trials for each defendant.'.
 No. 233, in 
clause 36, page 23, line 36, leave out subsection (6).
 No. 251, in 
clause 36, page 23, line 37, leave from 'holds' to end of line 39 and insert 
 'an office or employment involving the exercise of judicial duties.'.
 No. 250, in 
clause 36, page 23, line 37, leave out 'or has held'.
 No. 234, in 
clause 36, page 24, line 7, leave out subsection (7).
 No. 235, in 
clause 36, page 24, line 16, leave out subsection (8).
 No. 236, in 
clause 36, page 24, line 19, leave out subsection (9).
 No. 295, in 
clause 42, page 28, line 2, leave out subsection (1).

Dominic Grieve: I am sorry that the hon. Member for Nottingham, North (Mr. Allen) moved the amendment only formally, because requiring the reasons to be given for the application seems to be of some importance. However, a large number of other amendments can be considered, including some tabled by the Liberal Democrats. I note that the hon. Member for Southwark, North and Bermondsey (Simon Hughes) has only just arrived, so I shall try to hold the fort until other members of the Committee feel able to participate.
 A large number of Conservative amendments have been tabled to clause 36, which may be one of the most important in the Bill. First, we must ask whether a defendant should be able to apply for his trial to be conducted without a jury. The Committee will have to give careful consideration to that, especially as the clause provides for certain exceptions. For instance, someone may make such an application but find that he is denied the right. That is a matter of concern—an issue of principle is involved—and I hope that the Minister will respond. 
 If the Government take the view that trial by judge alone is so satisfactory that individuals should be able to seek it as an alternative to jury trial, why in the same breath do they seek to deny it to certain categories of individual? As I read the clause, they seem to think that the public would be unhappy with such a move, and that public opinion would be that justice was not being done if the trial took place by judge alone. That is one of the key issues that we have to consider. 
 The Minister will be aware that the official Opposition have grave reservations about the provisions relating to trial by jury. That said, however, we should consider each provision in turn because I am mindful of the fact that they may each have different merits and because each raises different problems. The principle that someone should be able to choose trial by judge alone is perhaps the most innocuous. After all, the jury system exists principally to provide a defence and protection to the person who is to be tried. 
 If an individual has a preference for trial by judge alone, it may be a circumstance that Parliament should be willing to permit. The problem is that, when one starts looking at the details, it seems that the Government have an uneasy sense that in some circumstances it could cause problems. They have answered their own question: there are compelling grounds for continuing to have jury trial for all indictable offences and the procedure of mixing and matching and allowing choice is undesirable. We need to examine that issue. 
 Amendment No. 232 is preliminary to amendments Nos. 233 and 234, which are designed to enable the Committee to consider subsections (6) and (7). Should we, for instance, deny somebody jury trial under subsection (6) because he has held an office or employment concerned with civil or criminal justice? Can the Minister explain the rationale for that approach? It might be that people would be anxious that there would be too pally a relationship between the individual and the person trying him. I can think of one instance in which a disgraced Crown court judge appeared in front of a stipendiary magistrate when the time came for his disgrace to be completed. Nobody said at that time that there was anything untoward about it. 
 Subsection (7) concerns a different issue, denying jury trial in instances in which the facts concern the administration of justice being brought into disrepute. I find that concept esoteric. The closest real life example that I can think of is that of an individual who is being tried for bribing a judge. It is difficult to 
 imagine any other circumstance in which it would apply. The anxiety that I experience in considering the provision is that the phraseology, although doubtless designed to address a particular instance, could be applied far more widely than is intended. For instance, do the Government mean by ''the administration of justice'' that the case of somebody who had been charged with attempting to pervert the course of justice—probably not something that concerned his relationship with the judge, although it might have involved the intimidation of witnesses—would constitute a circumstance in which trial by jury had to take place? 
 We could even experience the state of affairs in which somebody was denied trial by judge alone for having attempted to nobble a jury, but at the same time—under a later clause—his trial, after a further attempt at jury nobbling, would end up with the judge alone. There are inconsistencies in the wording that could lead to bizarre circumstances. The Committee must, so far as it can, predict and anticipate the bizarre. Otherwise we shall end up with a very strange system. 
 Amendment No. 251 covers the distinction between a judge and a recorder. It appears that a person would be covered, and would be denied jury trial, only in circumstances in which he was employed in a judicial capacity. What about those who fulfil a range of judicial offices that are not described as employment? Are they supposed to be covered? The Minister might want to consider that. Perhaps I am wrong, and the phrasing of the clause does cover such a person. 
 Amendment No. 250 is a probing amendment, concerning the post of office holder, unless it comes within subsection (7). To whom is that supposed to apply? If the Minister could help us on that, it would initiate the debate. Similarly, amendment No. 235 seeks to leave out subsection (8). What other exceptions might make it necessary in the public interest to conduct a trial with a jury if those exceptions are not contained in subsections (6) and (7)? That is an important consideration for the Committee. 
 Amendment No. 236 seeks to leave out subsection (9), which states: 
''In this section 'the administration of civil or criminal justice' includes the investigation and prosecution of offences and the carrying out or enforcement of an order or sentence of a court.''
 Subsection (9) has been included, I assume, to cover a wide range of officers. Does it cover prison officers, for instance? Are they part of the procedure by which a ''sentence of a court'' is carried out or does it apply only to an officer of the court, such as a tipstaff? We need clarification from the Minister on the meaning of those phrases. I hope that in initiating this debate—although I am sorry not to have heard the hon. Member for Nottingham, North speak on his amendment—I have at least set the scene for discussion. It is clear that the more one studies the detail of this clause, the more complicated it becomes. 
 The Government started out with the fairly simple view before the Bill was published that if people 
 wanted trial by judge alone without a jury there was no reason that they should not have it. It would be less costly and the Government were sure that such trials would deliver the same standard of justice as trial by jury. It has ended up in fact as an extremely complicated mishmash; seeking on one hand to give that right to a defendant but on the other denying it to him in certain circumstances. 
 I hope that with the Minister's help we can make a detailed examination of the clause to see first whether it needs to be improved. When we have done that, we can examine its principle in the context of the other proposals to reduce trial by jury and to introduce trial by judge alone.

Simon Hughes: I thought that I was putting the hon. Member for Beaconsfield somewhat on the spot earlier by making him speak slightly earlier than he expected. I anticipate, Mr. Cran, that there will be a clause stand part debate; therefore I propose to ensure my contribution on the amendments at this stage because the issue of principle is best discussed in the stand part debate that follows.
 There are three amendments in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath); there are amendments from the hon. Member for Nottingham, North; and there are amendments from the hon. Member for Beaconsfield and his hon. Friends. Of the three amendments in my name, amendment No. 295 is a consequential amendment to clause 42, and would be made only if the earlier amendments were made. Therefore I need not take up the Committee's time with it. 
 The first amendment simply proposes that if Parliament decides to agree to trial being by judge alone, by application, the judge should have complete discretion, once the application has been considered, to grant or not to grant the request. Clause 36 sets out the circumstances in which that could happen. At present, under clause 36(1) a defendant may apply for an application for trial without a jury if one or more defendants are to be tried on indictment for one or more offences. The application may be blocked if one of the defendants objects. 
 In subsections (6), (7) and (8) there is a requirement for refusal if any of the other criteria apply—the criteria to which the remarks of the hon. Member for Beaconsfield (Mr. Grieve) were principally addressed. Those criteria include the slightly unusual circumstances set out in subsection (6), in which, first, 
''the defendant, or any of the defendants, holds, or has held, an office or employment concerned with the administration of . . . justice''
 and, secondly, 
''the judge is satisfied that, if that defendant were convicted . . . questions would arise as to whether he had properly discharged the functions of that office . . . or was a fit person''
 and, thirdly, the judge is satisfied that there are exceptional circumstances. 
 I understand that provision in principle; it attempts to prevent a judge-only decision where an issue arises that could lead to suspicion of a set of vested or common interests, because other people involved in 
 the administration of justice would clearly regard someone on the inside as a better person to determine their guilt or innocence. The fear is, however, that it would appear to be an old boys' network decision, in which case jury trial would be a protection and would ensure that justice appeared to be done—for example, in the case of a clerk to a magistrates court who had embezzled funds when he or she was collecting fines. I understand the provision, although we could debate whether the wording is perfect. 
 Subsection (7) gives a third reason why the judge can insist on a jury trial. It states: 
''This subsection applies if the judge is satisfied—
a) that, because of the conduct which is alleged to constitute the offence or any of the offences concerned, the issues which will arise . . . include issues relating to whether the administration of civil or criminal justice has been prejudiced or brought into disrepute, and
b) that the matters . . . give rise to exceptional circumstances''.
 I would imagine that that would cover issues associated with perjury and interfering with the course of justice, and I completely understand that cases in which such issues arise should not be judge-only trials. It is important that lay people should make decisions about such cases, so that the judgment does not appear to be a legal decision. 
 Subsection (8) includes a sweep-up provision that will apply where 
''the judge is satisfied that exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury.''
 That will probably cover all the circumstances that would also be covered by my amendment, No. 202. It is not easy to think of exceptional reasons why a judge would decide that the public interest requires a jury trial. The only generic circumstances that I can think of are where something does not technically qualify as an exceptional reason but where we might want to give the judge discretion. Alternatively, there might be reasons that the judge does not want to reveal publicly, relating to previous trials that he conducted, for example, if the judge has tried other people in the same series of trials. If the judge had presided over a couple of trials in a series of cases of armed robbery, with three defendants in each, and all had been jury trials, it would be wrong if a judge alone tried the third trial. The third trial might involve a single defendant, because that was how the prosecution conducted their case, and there might not be any exceptional circumstances. 
 The circumstances of a case may be perfectly routine, but the judge might believe that it should be tried by a jury. That could be for personal reasons. The judge might have been the subject of extreme criticism in the media—for example, in a sex offence case—for giving a guilty verdict but a lenient sentence. In such circumstances, when the next sex offence came before that judge, he might decide, for perfectly proper and professional reasons, that he wanted a jury to decide the case; otherwise, he might be regarded as a judge of a particular species, a weak or a soft judge. I am unsure whether those would qualify as exceptional circumstances, but it would be impossible for that judge to make the reasons for his decision public. 
 There are plenty of cases in which one might want to allow the judge, having heard the argument and setting aside the merit of the case as a whole, to say, ''On a balance of argument, I believe that it should be a jury trial''.

Paul Stinchcombe: The hon. Gentleman seemed to suggest that the sweep-up provision in subsection (8) might give the judge the same breadth of discretion as amendment No. 202. I wonder whether he concedes too much when he so states. Subsection (8) requires the judge to consider it
''necessary in the public interest for the trial to be conducted with a jury.''
 However, subsections (6) and (7) both use the word desirable.

Simon Hughes: That is a very good point, and is why, when we thought about the clause, and talked to others about it, it struck them and me that a general discretion with the judge would be better. The hon. Gentleman is right to point out that there are slightly different criteria. The last criterion, which introduces a necessity, is unusual. The judge would have to be persuaded, on a balance of probabilities, that the decision would be in the public interest. The Crown Prosecution Service does that every day, when it makes decisions about prosecution—it takes a more than 50 per cent. test. The judge would have to take such a test.
 As it happens, yesterday I visited the judges in Snaresbrook Crown court.

Humfrey Malins: Did you have a good lunch?

Simon Hughes: Not particularly. I had lamb pies, an apple, a cup of coffee and some leek soup. Perhaps the lunch improves later in the week.
 We talked about the matters under discussion. There is nervousness among judges that they might end up trying cases on their own. They are not strident on that issue, although they also anticipate the problem that we shall discuss in the clause stand part debate. 
 I ask hon. Members to consider the protection proposed by amendment No. 203, which would add to the end of subsection (3): 
''if he is satisfied that this will not compromise the defendant's right to a fair trial''.
 Thus, if the Committee rejected the proposal that the decision that trials be conducted without a jury be discretionary, and it held on to the obligatory consequence, the judge, in making an order, would have one more consideration to take into account: that the defendant's right to a fair trial not be compromised. 
 One might say, ''Hang on a minute. Which judge would say, 'I'm not going to try a case fairly'?'' One would hope that they would all feel able to try cases fairly. However, there is a slightly wider consideration. The question is not simply whether judges think that they can decide the facts reasonably—I am sure that they form views about the facts all the time, even 
 though they do not make a judgment on innocence and guilt. However, in terms of a fair trial, the issue is as much to do with justice being done as justice being seen to be done. 
 There may be cases in which the judge believes that it is in the defendant's interest for a jury to give the result. The cases that come to mind most are the notorious sex offences, child killings and the like. I can understand why a defendant would want a judge-only trial in some of those cases. A judge-only trial would probably make the trial much shorter. There would not be the embarrassment caused by the case's being set out before 12 members of the public, and the trial would seem less of a public trial. There therefore might be a temptation for the defendant to say, ''Yes, I want this. This is the way I can get through the system most speedily''. I can foresee pressures on a defendant to do so in some cases. 
 However, if the case is nationally well known—we can all think of recent examples—it may be better for a jury to take the decision, because a jury's authority is greater than that of a judge. I shall make that argument later. The verdict is that of the public, not a professional lawyer.

Lady Hermon: In support of the hon. Gentleman's point, I draw his attention to Diplock courts, which have been in place in Northern Ireland for many years. Judges sitting without a jury there have had to tolerate years of criticism. How can one guarantee that a judge sitting alone here will not suffer that same criticism?

Simon Hughes: I am very conscious of the history of the Diplock courts. I remember all the anguished debates that we had in the House in the early 1980s when the now Lord Carlile of Berriew and I, along with other colleagues, struggled over whether we could support the emergency legislation. The system placed huge pressure on the judges, to whom I pay tribute, for I have been in the front line in the most terrifying circumstances. It is an unreasonable pressure to put—

Hilary Benn: I am listening with great care to the point that the hon. Gentleman makes.
 Does he accept that the consideration that the hon. Lady has raised does not apply, since the trigger for the clause is that the defendant himself or herself has requested a judge-only trial? The circumstances are very different in Diplock courts.

Simon Hughes: I understand that, but I still side with the hon. Member for North Down (Lady Hermon) for this reason. For example, in the case of a stabbing between members of Roman Catholic and Protestant gangs in Liverpool, a defendant might apply for a judge-alone trial. The judge would be put in a position in which he had no discretion but to hear a trial that concerned the two traditions in Liverpool. The Bill's remits extends to Glasgow also. That might put the judge in a very difficult position. At the end of that hearing, should it be a marginal case, he might become reviled and the subject of abuse from the other
 community, even though it was the defendant who applied for a judge-only trial.
 The provisions could not, by definition, preclude an application for judge-only trial being made for a judge's very first case on his first day. A judge who has never sat before could be trying a Crown court case. There is nothing in the Bill to allow that judge to say, ''No, I am not comfortable with doing that''. It would be a brave judge who would happily make a decision on the facts alone in his first case. Therefore, there are all sorts of practical reasons to prevent that happening. 
 On the detail, I do not have strong theological views. I have practical views like those of the hon. Member for Beaconsfield, but I do not seek to repeat the arguments that he made. However, I shall argue in a moment that the defendant's right to request a judge-only trial is an unwise road down which to go. 
 Amendment No. 285 raises an interesting question, and I understand why it is proposed. However, it may not be practical, for the reasons at which I hinted earlier. Take, for example, an application in Nottingham, or elsewhere, by a defendant in a paedophile case. I am aware that such cases have been the subject of much anguish in Nottingham because of the proposal to house paedophiles in Nottingham jail. As I recollect, the community has been antagonised by that proposal. 
 A defendant would not want to elaborate in any way that might become public the reasons why he was applying for judge-only trial. We might all speculate about that, but if he was poorly represented or not represented—he probably would be represented—he might make the application in a formulation that was not helpful to him. The defendant might sound weak. He would have to be careful that, even though he was pleading not guilty, it did not appear that he was asking for a judge-alone trial because he did not want someone to assume that he was guilty. There are all sorts of difficulties. I understand exactly and, logically, I would be on his side. I would say that of course he should give his reasons and that everything should be above board. The application should be made in public, and the judge should consider it and give his decision in public. Everything should be on the record, not least because if the decision goes to appeal, it can properly be adjudicated by the higher court. My worry is that the reason why some people might decide to ask for a judge-alone trial might be absolutely the reason why they did not want to say what the reason was. It would therefore be impractical.

Graham Allen: That is why I wanted first to hear the Minister's view. However, the hon. Gentleman has raised the question, and the example that he gives is of great concern to me—but probably even more so to my hon. Friend the Member for Nottingham, East (Mr. Heppell), in whose constituency lies Nottingham prison, although he is sadly not at liberty to contribute to the debate. I should have thought that it was exactly the sort of case for which people might want to hear a public defence of why a trial should be held before a judge alone. Why should individuals be given that privilege? The reasons would
 need to be explained, particularly in the highly sensitive cases mentioned.

Simon Hughes: I meant no discourtesy to the hon. Member for Nottingham, East by mentioning a case that I remember from my past visits to Nottingham, but it was a big issue in many parts of the city and was the sort of case that would be carefully followed by the local press.
 I shall give one last example. The most famous case relating to a constituent of mine was that of Derek Bentley, who was born and brought up in Southwark. He eventually moved to Croydon, where the events occurred that led to his trial, the famous conviction, his death and the intervention of Lord Goddard, the Lord Chief Justice. Derek Bentley was a man of limited intelligence; he was educationally subnormal. One might expect such defendants as Bentley, and others who are vulnerable because of mental illness or educational disability, to be advised to go for a jury trial, because the jury would have a greater breadth of experience and more sympathy. However, that does not necessarily follow; they might be rather dogged in their determination to have a judge-alone trial for reasons that are rather difficult to explain. 
 It is difficult to see how, with the Bill as currently drafted and particularly without amendment No. 203, judges would be able to refuse applications by single defendants, even though they had some nervousness about the matter, unless other protections were provided. I therefore seek to persuade the Committee that we must strike a delicate balance. That is why I tabled my amendments, and why I am sympathetic to the amendments proposed by the hon. Member for Nottingham, North and those tabled by Conservative Members. We need to proceed carefully, to ensure that we get the balance right if both Houses of Parliament decide to keep that provision in the Bill.

Humfrey Malins: I should like to speak to amendments Nos. 252, 251, 250 and 235. By way of preliminary comment, I have to say that although the clause excites great emotion among many people, it is as well to recognise that the current law is quite plain: defendants can opt for trial by judge alone in a vast number of cases—and they do, day after day, when they stand in Bow Street court and opt not for jury trial but for judge-alone trial—namely, trial by the district judge. District judges are hearing trials all around London.
 The hon. Member for Southwark, North and Bermondsey mentioned the difficulty of inexperienced or brand new judges in the Crown court being asked to take a judge-only trial on their first day as a judge. I agree, but even the most experienced judges, who have been in the Crown court for 10 to years, will have to conduct their first trial at some stage. They might find themselves in the same position. Similarly, it is not uncommon for a High Court judge to go out on the circuit and to be asked to conduct a criminal trial of some magnitude in a Crown court centre, never having appeared in a criminal court before. 
 Amendment No. 252 deals with the issue that arises in subsection 36(5), 
''if two or more defendants are to be tried and any of them opposes the application.''
 It seeks to probe what would happen if a judge ordered separate trials for each defendant, as happens occasionally. If two defendants are to be tried together, one must not be pushed into judge-only trial simply because his co-defendant wants it. That is a fair proposition. However, circumstances can arise in which two defendants appear in the dock, on the same indictment, charged with the same offence, and the judge orders them to have separate trials. I need not go into the reasons, nor need the judge. What is the position of each of those defendants in that situation under this clause? It could be argued that if a judge orders separate trials for two defendants who appear at the same time, one could be tried by a judge, and the other by judge and jury. Will the Minister focus on that when he replies? 
 Amendment No. 251 is a probing amendment that seeks to limit the scope of subsection (6)(a), which is exceptionally wide. It concerns a defendant who holds or has held 
''an office or employment concerned with the administration of civil or criminal justice.''
 Can the Minister tell us what is encompassed by that phrase? I believe that we should, through the amendment, limit the scope of the subsection so that it includes only those who exercise judicial duties, such as judges, magistrates and even clerks, and perhaps the adjudicators in immigration and other cases. Can the Minister justify the wide scope of the clause? All sorts of people can have been involved in the administration of civil or criminal justice, such as those in a variety of jobs connected with the courts, the probation service, the Prison Service, community service and the like. Can the Minister also refer to the position of those who sit on what might be described as quasi-criminal/civil panels? What about those who sit on the disciplinary panels of the General Medical Council and the Law Society? Those panels have a judicial function and could be said, if one stretched the argument, to have something to do with the administration of civil or criminal justice. I seek to limit that with amendment No. 251. 
 Amendment No. 250, which deals with the same general issue, refers to the defendant's holding, or having held, an office or employment. That amendment would omit ''or has held'' from subsection (6)(a), and is a probing amendment, as the current wording is terribly wide. The words ''or has held'' give rise to the question, ''When?'' Could such an office or employment have been held 10 or 20 years ago? The employment might have been very brief. What about those who did a fortnight's work experience 25 years ago? I appreciate that issues linked to that matter are dealt with elsewhere in the clause, which puts subsection (6)(a) in context. Nevertheless, it is worth considering whether the Minister intends the words ''holds, or has held'', given considerations of the time limit involved. 
 Amendment No. 235 is again a probing amendment, and would omit subsection (8). As the hon. Member for Southwark, North and Bermondsey said, subsection (8) is a sweep-up provision. The problem with such provisions is that they tend to cover everything that has not been thought of before. They therefore need a definition. If nothing else applies at all, the judge might be 
''satisfied that exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury.''
 That gives the judge the ability, having heard the argument, to say, ''I'm looking at the sweep-up provision, and I'm going to deal with it under that''. We would like to know what the exceptional circumstances might be. The Court of Appeal might lay down some guidelines, and there will be case law on the issue. However, I am not that happy with the concept of its being ''necessary'' for the trial to be conducted with a jury. I find it hard to think of cases in which it would be necessary, which is a strong test, as opposed to, say, desirable or a good idea.

Paul Stinchcombe: I am concerned about the distinction between the words necessary and desirable. As drafted, the clause allows for a judge to be satisfied that exceptional circumstances exist that make it desirable in the public interest for the trial to be conducted with a jury, but none the less obligates him to order that the trial be conducted by himself alone.

Humfrey Malins: The hon. Gentleman makes a good point, and he speaks with experience, with his career at the Bar.
 I shall not stray into the clause stand part debate. However, there are now so many trials by judge alone that the most experienced people whom the provisions will affect will be those many district judges who transfer to the Crown court bench. The principle, which we shall discuss later, seems to be established, and many people opt for that choice.

Hilary Benn: I apologise in advance to the Committee if I respond at some length. In its way, each amendment brings out the principle that lies behind the clause, as well as the detail and the substance. The clause, and others to which we shall come shortly, have attracted great interest in Parliament and elsewhere. Some of that interest has been informed less by their content than by people's perception of what they are about. I was therefore particularly pleased to read what the Home Affairs Committee said about part 7 in general and clause 36 in particular. It said:
''We do not see why a defendant, who is tried on indictment, should not have the option to waive his right to a jury trial, subject to the conditions specified in the Bill''.
 We are now debating those conditions. The Committee continued: 
''In our view, the proposal offers the potential for a quicker and cheaper form of trial without affecting adversely the defendant's interests. For these reasons, we welcome the proposal to allow a defendant to apply for a trial without a jury.''
 We need to take careful note of what the Home Affairs Committee said. 
 It might assist the Committee to understand the debate on the amendments if I set the clause in context. Like all of us, Sir Robin Auld is clear about the importance of the institution of the jury and about its powerful place in our criminal justice system. As we have all learnt, Governments consider proposals to limit the right to trial by jury at their peril. However, that is no reason to avoid looking at ways of improving the system or at the problems that trial by jury may present in a small number of cases. In saying that, I am anticipating the flow of the clauses to which we shall come. 
 I hope that I can reassure members of the Committee that the present proposal is not the thin end of the wedge, as some have argued. Jury trial will continue to be the norm for the vast majority of serious cases, if that is what the defendant wants. That is what the clause is about, and it seeks to broaden defendants' options.

Simon Hughes: Does the Minister have any information showing how frequently defendants elect for judge-only trial once jurisdictions move to introduce such a right? Have the Government considered experimenting with it for a limited period of five or 10 years, rather than moving ahead in one go?

Hilary Benn: I recollect that information is available on the hon. Gentleman's first point, but I do not have any to hand. I will gladly write to him about the experience in other jurisdictions and circulate the information to other members of the Committee. On his second point, I do not see why anyone would want to subject the measure to an experiment if they, like the Government, accepted and felt comfortable with the principle that the defendant should have the right to choose, subject to the restrictions later in the clause. Therefore, I do not think that I would agree with the hon. Gentleman's suggestion.
 The clause arises from a recommendation by Sir Robin Auld. The option to dispense with a jury—I nearly anticipated the hon. Gentleman's point—is an established feature of several other common law jurisdictions, including Canada, New Zealand and the United States. The introduction of such an option in this country was widely supported by those who commented on Sir Robin's recommendations, and it is important that the Committee remembers that. 
 I find it hard to see an argument that quarrels with the principle of allowing a defendant the right to choose. The hon. Member for Beaconsfield—I have gone through six sittings mispronouncing the name of his constituency, and it was only during yesterday's Opposition Supply day that he chose to upbraid me for my incorrect pronunciation—

Dominic Grieve: I did not. I believe it was someone else.

Hilary Benn: In that case, I apologise.

Dominic Grieve: I certainly did not upbraid the Minister. I would not have been so rude as to do so. In the 19th century the pronunciation appears to have been
 variable. Disraeli was undoubtedly the Earl of ''Beeconsfield'' but it is now pronounced ''Bek'', and the etymology shows that it was originally spelled ''Bek''.
 Can the Minister comment about other jurisdictions by way of providing a caveat to the right to trial by judge alone of the kind that is included in the Bill? Do they allow for trial by judge alone but deny it under certain circumstances, as is proposed here? It appears that this is a nub point. The Government have extolled the possibilities of the system, but have pulled back, and have therefore introduced an element of doubt into their reasoning. The Committee is entitled to understand why.

Hilary Benn: I do not know the answer to the question about other jurisdictions. If the information is available, I shall gladly write to the hon. Gentleman. I was coming to the point that he made in his opening remarks, during which he coped admirably with his surprise in having to speak so early. He encapsulated the debate in asking the two questions: is it right to allow the choice, and is it right to deny such a choice if it is made? That goes to the heart of a number of the amendments.
 The Government see no reason to quarrel with Sir Robin Auld's argument that the principle should be that the defendant should have the right to opt. Therefore, the question is whether there should be any limitation on the option. Being in favour in principle of the right to opt is not inconsistent with the restrictions on that right that are proposed in subsections (6), (7) and (8). Clause 36 sets out the few cases in which it is in the public interest for a jury trial to be ordered, even though that might not be what the defendant wants. In such cases a jury can provide the additional measure of public ventilation of the criminal justice system that, in the limited circumstances in question, is sufficiently important to tilt the balance against the defendant's wishes. 
 Amendment No. 285 suggests that the defendant should have to give reasons for choosing one method of trial rather than the other. I can see why my hon. Friend the Member for Nottingham, North has tabled it, but I am not persuaded that it would be right for us to place such an obligation on defendants, when that is not required in the case of their current right, which is being retained, to opt for trial by magistrate or by jury. Defendants should be free to opt—that is the purpose of the clause—so their choices do not need to be justified. They could have been made for any of a variety of reasons, some of which have arisen in the course of the debate on both the amendments and the substance of the clause. 
 It might be, as the hon. Member for Southwark, North and Bermondsey suggested, that the defendant believes that a judge alone trial will be over more quickly. That can be a reasonable consideration. It might be that he has a desire to have a reasoned verdict, which is one of the features of judge alone trial. I am not persuaded, because even if the defendant were required to give reasons, the judge would not be able to take any of them into account. I would also make the point that in clause 39 there is provision for an appeal by either side, so in so far as 
 issues surrounding this clause are subject to its later provisions, an appeal would provide the opportunity for the arguments to be ventilated publicly.

Graham Allen: The defendant may well opt for a judge only trial because he or she wishes to avoid a jury trial. If someone wishes to avoid a trial by their peers, but others are totally convinced about the need for a jury trial, it should, at least, be incumbent on that person to say in open court why they do not wish to be tried by their peers. The hon. Member for Southwark, North and Bermondsey mentioned sex offenders. Having carefully weighed up the odds, such people might feel that a technical defence before a judge would carry more weight than a trial before their peers. The provision is not intended to deny them that right but merely to ask them to say why they wish to exercise their right to avoid trial by jury.

Hilary Benn: I hear my hon. Friend's argument. To express the reason for their desire to be tried by the magistrates rather than by a jury, for example, is not a requirement that we currently place on those who are charged with either way offences. If it is not required of them, I am not convinced that it should be required in the circumstances that we are discussing. Secondly, what would constitute a reason? A defendant might have a particular preference, having regard to all the circumstances, but there would be no examination of the reason and no one to say that the reason was insufficient. I understand my hon. Friend's point, but I do not think that his suggestion would benefit the process.

Humfrey Malins: In answer to the point raised by the hon. Member for Nottingham, North, the reality is that, day after day, thousands of defendants in our courts opt for district judge alone trials without having to give any reasons at all. That is common practice. For the purpose of the principle, the difference between the titles ''circuit judge'' and ''district judge'' is irrelevant.

Hilary Benn: The hon. Gentleman is absolutely right. That supports my point.

David Kidney: Presumably, the rules of court will set out the procedure for making such applications. After all, looking ahead to clause 39, if the judge thinks that subsection (6), (7) or (8) applies and the application must be refused, there will have to be a pre-trial hearing, so presumably, at some stage, there will be some indication that a person is making an application. Although an application might not list the reasons in detail, it will include some information on the basis of which the judge can determine whether he needs to consider whether subsection (6), (7) or (8) applies.

Hilary Benn: I understand my hon. Friend's point, although the clause provides that it will be for the judge to consider whether subsections (6), (7) or (8) apply, having received a simple application from the defendant that he or she wishes to be tried by a judge alone. Clearly, a conversation will take place in those circumstances.

Ian Lucas: Can my hon. Friend clarify how the judge would be in receipt of the information
 with which to determine whether those subsections apply?

Hilary Benn: There will clearly need to be guidance on the operation of the clauses, and that guidance will need to cover the point raised by my hon. Friend.

Dominic Grieve: The hon. Member for Wrexham (Ian Lucas) has picked up an important point, which concerns me, too. I had rather assumed that it was likely to be the prosecutor who would say that he was not happy with the choice, so that the view would first be put to the judge by the Director of Public Prosecutions, the Crown Prosecution Service or other prosecuting service. If that is not the case and the judge must make an independent judgment, he will need to be assisted by documentation or by the history of the case being made available to him. However, the Minister may agree that it is somewhat naive to think that the judge would be making an abstract decision; he will come to that decision under prosecution pressure.

Hilary Benn: As I said in answer to my hon. Friend the Member for Wrexham, that would be clearly covered by the rules of court. The judge at the preparatory hearing will have to decide whether it is appropriate to fetter what would otherwise be the choice of the defendant to opt for a judge alone trial.

Stephen Hesford: Is not the point made by my hon. Friend the Member for Stafford (Mr. Kidney) relevant? It would be for the defendant to decide how much information to put before the judge when making the application rather than, as my hon. Friend the Member for Nottingham, North suggested, its being a requirement to tell the court on what basis the request was being made. It would be for the defendant to decide how much information to offer.

Hilary Benn: As I said when answering my hon. Friend the Member for Nottingham, North, there is no obligation on the defendant to provide information on why he wishes to be tried by a judge alone. I draw the Committee's attention to clause 39, which sets out the procedure for dealing with applications relating to clauses 36 to 38.

Humfrey Malins: The defendant may have the right to apply to a Crown court judge for the trial to be conducted without a jury, but will the Minister answer this specific point? Will an obligation, laid down in rules, be placed on the defendant to declare his preference at the plea and directions hearing, on the first day of the trial or at any other time? What prejudices or bars will exist if he fails to declare at that specific time? Putting it another way, if the application is made on the first day of the trial will it not require an expensive adjournment, lasting weeks, while the prosecution investigate whether there has been a link with the man's past and with certain employments?

Graham Allen: I am certainly not going to press the amendment to a Division, but I wonder whether, if the Minister feels that some helpful points were made this morning, he would consider bringing something back on Report that accommodated some of those matters?

Hilary Benn: I feel a letter coming on. I shall try to answer the first of those points. It would clearly need to be included in the rules of court that the defendant should indicate his choice as early as possible in the process. It would be ridiculous to leave it until a later stage or until a jury trial had been organised. A common-sense approach suggests that the rules of court would need to cover that.

Dominic Grieve: This is an important point, because the Minister may have missed the extent to which judges have reputations, especially in the Crown court. A defendant's decision whether to opt for trial by jury or for trial by judge alone may be dictated by his desire for some knowledge of which judge will be trying the case. For that reason, he will not wish to make a decision until the last possible moment.

Hilary Benn: It will not be the case that the defendant can wait to see who will try the case and then say, ''Oh, if it is going to be Mr. Justice So-and-so, I do not fancy that.''
 Amendment No. 202 would change ''must'' to ''may''. I do not agree with that, because as the purpose of the clause is to give defendants a choice, the Government's view is that circumstances in which that choice will not be respected should be very clearly set out, and the Government have done that in subsections (6), (7) and (8). To give the court such wide discretion would not be right. 
 Amendment No. 203 would ensure that when making an order that a trial be heard without a jury, a judge must be satisfied that it will not compromise the defendant's right to a fair trial. The answer to that point was made extremely cogently by the hon. Member for Woking (Mr. Malins). I do not accept, and neither do the Government, that there is a lack of equivalence in terms of the legal entitlement to fairness under article 6 of the European convention on human rights between trial by jury and trial by judge alone. He pointed out that every day many trials take place before a judge alone, and it cannot be right—nor is it the case—that those trials are less fair than those heard before a jury. In relation to article 6 of the convention, I should point out that in several jurisdictions there is no trial by jury in the form in which we operate it. The amendment is quite unnecessary. 
 Amendments Nos. 232, 233, 234 and 235, as their originators acknowledge, probe the meaning of subsections (6), (7) and (8) and express the view that there may be exceptional cases in which the defendant's wish to have a trial by judge alone should not prevail. The principle underlining this policy is that in these cases there is a public interest in the greater public ventilation that a jury trial would provide. This principle is expressed in the variety of arrangements in other common-law jurisdictions that give defendants the option of dispensing with the jury, subject to certain exceptions. 
 I hope that it will help the Committee if I briefly summarise the intent of subsections (6), (7) and (8), all of which are subject to an exceptional circumstances test. It is important that we bear that in mind. Subsections (6) and (7) concern cases that might be 
 characterised as having particular significance for the administration of justice; for example, serious cases of perverting the course of justice. Subsection (6) makes it clear that we have in mind cases in which the defendant who makes an application to be tried without a jury is, or was—and that is deliberate—in employment connected with the administration of civil or criminal justice; for example, a judge, a prosecutor or a police officer. 
 In relation to amendments Nos. 251, 250 and 236, the offences with which the defendant may be charged may or may not be related to his job, but they must raise serious doubts about his fitness for employment. Committee members have referred to subsection (8) as a catch-all provision. 
 The circumstances envisaged in subsections (6), (7) and (8) have in common the notion that there is a balance to be struck between the private interests of the defendant to have his or her trial heard without a jury, if that is what he or she wants, and such public interest as there may be from time to time in having trial by jury. I have acknowledged that the defendant may have perfectly understandable reasons for wanting to have a judge alone trial, but there are certain sorts of cases, with the characteristics described in subsections (6), (7) and (8), that the Government adjudge are more appropriately heard with a jury. That is not because jury trial would be fairer, as I explained, but because it would bring a greater measure of external ventilation to the process.

Paul Stinchcombe: Will the Minister explain the reasons for using the word ''necessary'' rather than ''desirable'' in subsection (8)? It seems that the accused's desire for trial by judge would prevail even if the judge decided that it would be desirable in the public interest for the trial to be conducted with a jury.

Hilary Benn: If my hon. Friend will bear with me, I shall come to that in a moment.
 Subsections (6) and (7) focus on cases whose significance lies in their relevance to the administration of justice, because of the defendant's position in the justice system or because the offence bears on the system. We strongly believe that jury trial has added value in such cases, as it avoids any possible suggestion that the criminal justice system is trying its own in a closed, private fashion. The hon. Member for Beaconsfield touched on that. 
 Subsections (6) and (7) need not specify in detail what a judge must consider in deciding whether exceptional circumstances exist, but he or she might be expected to consider issues such as the seriousness of the offence charged and the seniority of the defendant's post in the administration of civil or criminal justice. 
 We recognise, however, that subsections (6) and (7) may not completely exhaust the circumstances in which the public interest should override the defendant's views on the mode of trial. Subsection (8) therefore provides for the judge to have discretion to refuse a defendant's request, where he or she considers that exceptional circumstances make it necessary to do so in the public interest. My hon. Friend the Member for Wellingborough 
 (Mr. Stinchcombe) was right to draw attention to the contrast between the test of desirability in subsections (6) and (7) and that of necessity in subsection (8). The hon. Member for Southwark, North and Bermondsey seemed to make a case for the provision, although it is not a catch-all—it tidies up the process. 
 The application of subsection (8) will be subject to an extremely high test, and cases will be very rare. We have deliberately not sought to limit its application by specifying particular types of offence, although it might come into play in a trial involving exceptionally serious charges. The key point, however, is that its application will be subject to the higher test of necessity.

Dominic Grieve: I apologise to the Minister. I have had to do some browsing, but I think that I follow him. Do his words not negate the whole thrust of the clause? Leaving aside cases involving those who administer justice, there are crimes that he feels are so serious that jury trial is essential. How is that exception to the argument that people should have a choice justified? How is the philosophical or practical distinction made? It worries me that we may have a process that gives with one hand and takes away with the other. If the Government are confident that trial by judge alone is such a correct alternative, why do they not have the courage of their convictions and stick to their guns? Why do they not remove all exceptions, apart, obviously, from that in subsection (5), which applies where a co-defendant objects?

Hilary Benn: I hear the hon. Gentleman's point, but I do not agree. The application of subsection (8) is subject to an extremely high test and the Government think that sensible, whether that convinces him or not. Clause 36 is intended to give the defendant a choice, but that choice should be subject to the tests set out in subsections (6), (7) and (8). The exceptional circumstances set out in subsection (8) may make it necessary in the public interest. That is the test for a trial to be conducted with a jury, and the judge has to make that judgment, subject to appeal. I come to co-defendants—

Simon Hughes: Can the Minister give us two or three examples of circumstances in which he thinks that the necessary test will be met? He must have discussed the matter with advisers and others. Why do the Government not propose to emulate the law in countries that have accepted judge only trial but limit it to all but the most serious cases?

Hilary Benn: Because, having had those discussions, we have concluded that it would not be sensible to attempt to codify the law in that way. I gave the example of charges of exceptional seriousness. The other reason why we have not made such a proposal is that we feel that it is a decision for the judge to make, subject to the appeal provisions of clause 39.

Vera Baird: Will my hon. Friend give way?

Hilary Benn: I want to make progress, and am conscious that I am taking up a lot of time and we have other clauses to consider.

Humfrey Malins: We have all day.

Hilary Benn: Amendment No. 252 concerns co-defendants. The hon. Members for Beaconsfield and for Woking sought to clarify the operation of subsection (5). I hope that I can help both of them. Where the judge has ordered separate trials for defendants who were originally to be tried together, each of those defendants should have the option to elect or to refuse juryless trial regardless of the other's wishes. The hon. Member for Woking was right in his understanding that it would be a sensible way in which to proceed. That is what we intend to do.
 Amendments Nos. 251, 250 and 236 would limit the scope of subsection (6) to people currently holding employment that involves the exercise of judicial duties. The idea behind the subsection is that particular public interest considerations apply. It is a protection against any appearance that the system may be trying itself. The subsection would involve people in the criminal justice system such as police officers and prosecutors, so it would not be logical to limit its application to magistrates and judges. Neither, although I understand the argument put by the hon. Member for Woking, would it be sensible to limit it to those who are currently so employed; there might be a case that involved somebody who had been retired for a matter of weeks. The problem of the system appearing to try itself might be a consideration, although that would be for the judge to determine in all cases—subject to the guidance that will be issued—and it would have to give rise to exceptional circumstances that made it desirable. It would not apply to someone who worked in a small capacity many years earlier. Amendment No. 295 is consequential, and I think that I have dealt with it in my previous arguments. 
 I apologise for the length of my reply, but a lot of issues have been raised and I hope that I have covered not only the principle of the amendments but the substance of the clause.

Humfrey Malins: I shall be brief. The question of the stage at which the defendant should make an application for trial by judge alone has been raised. Can that be allowed on the first day of the trial, which would result in huge expense? I have had an idea that that might be got round by an instruction to magistrates and district judges that upon any committal or transfer of a case from the magistrates court to the Crown court, a form of words must be used by the magistrate or district judge to the effect that if the defendant wishes to opt for trial by judge alone, such application must be made at the plea and directions hearing, and no later; otherwise, it will not be entertained. That may help the Minister.

Dominic Grieve: I am grateful to the Minister for his detailed response to the various amendments. At this stage of our consideration of the clause, the key issue that has emerged may be the question whether that right should be unfettered or fettered.
 On one hand, the Select Committee broadly welcomed the idea that people should be able to apply for and get trial by judge alone because it is their right. It said nothing to suggest that that right was to 
 be fettered, except when considering any co-defendant's rights. On the other hand, from the Minister and the Government we have a much more complicated clause, which gives the right but sets out circumstances in which that right may be denied. That almost causes me more concern than the principle of the clause itself. A complex and hybrid system will be set up that will question and challenge the right to a judge-only trial. The defendant, as is his entitlement under our law, should be able to choose a judge-alone trial if his co-defendant does not object. Instead, there will be constant bickering and press comment on the circumstances in which a prosecutor—because that is the person who will act on behalf of the state—will argue that the right should be denied for public policy reasons. That brings into clear and immediate conflict the individual's right to choose against the public's right to perceive that justice should be done. 
 Without betraying too many secrets, I discussed the matter with Lord Falconer when I discovered that the Bill would include exceptions. His reputation as a civil lawyer has been savaged. I explained to him that, in a funny way, although I had anxieties about giving this right in the first place I found that to include exceptions made the whole matter worse. The expression that he used, which I think I can repeat in Committee if not in the Chamber, was that he found my argument ''anal''. I disagree. My argument may be anal, but I shall continue to put forward such arguments.

Simon Hughes: Are you sure that it was not ''banal''?

Humfrey Malins: Able.

Dominic Grieve: It was not ''able''. It was not an able argument.
 All that I can say to the Minister is that the issue is really important. With your leave, Mr. Cran, I wish the Committee to have an opportunity to decide whether the exceptions, which give the state the power to deny the right to choose that clause 36 gives, should be included. Other amendments would be needed, but amendment No. 232 would be the significant amendment to enable that to happen.

Vera Baird: My point arises from that which the hon. Member for Woking has just made about the timing for the selection. If the right cannot be withdrawn, except within the terms of subsections (6), (7) and (8), whatever rules of court say, would it be possible to deny the exercise of that right up until the last minute? I suspect that it would not be. Rules of court cannot buy the exercise of the section in the statute. Consequently, one will get what the hon. Member for Beaconsfield foreshadowed. Someone who knows the bench will wait until the judge is appointed before he decides whether he wants a judge-only trial. I would do exactly that in the same situation, although it will prove unavoidable and expensive.

Dominic Grieve: I am grateful to the hon. and learned Lady. That is exactly what would happen. Indeed, if I was taking a client through the criminal justice process and wished to protect his interests as much as possible, that is exactly what I would do to keep the margin for
 manoeuvre as open as possible. It would be my duty to do so. When appearing before certain judges, I would say, ''We have a nice, rather weak-minded judge''—

Humfrey Malins: Like me.

Dominic Grieve: I would not dream of saying that about my hon. Friend. I would say either, ''We have a rather weak-minded judge'' or ''We have someone quite horrible, and you had better opt for jury trial.''
 I must tell the hon. and learned Lady that that goes to the principle of the clause. However, if I had a hierarchy of preference it would be that if the Government really wished to embark on that course of action, the exceptions, especially the obvious one of the co-defendant's rights, should not be included. The Government should have the courage of their convictions. I shall therefore seek to press amendment No. 232 to a Division, because it is an improvement. However, I reserve my position, because important issues need to be raised on clause stand part, and I shall seek to divide the Committee on that too.

Ian Lucas: Could the hon. Gentleman help me with one point? How would he distinguish between the prosecution's role in denying jury trial to a defendant in mode of trial proceedings by making submissions to the court, and the present circumstance? Is there a major difference of principle between those two scenarios?

Dominic Grieve: As matters stand, the defendant in an either-way offence has the unfettered right to go for jury trial. I always assumed that the background principle for that right was that if the defendant wished to contest the issue it was a preferable course for him to adopt, although as my hon. Friend the Member for Woking said he could opt for trial before the magistrate. However, even if the prosecution argue that the matter should go for jury trial, it is still ultimately a matter for judicial discretion by the magistrates.
 In some circumstances, people may be happy enough to have the matter tried by the magistrates but the prosecution will say that it is serious enough to go the Crown court. It will then be up to the tribunal to decide. It has always been thought that the option of going for trial at the Crown court has given the individual extra protection, so I have rarely had people complain that they have been forced against their will to go to the Crown court. In my experience, they usually want to stay in the magistrates courts so that they can plead guilty. I accept that there may be exceptions, but that has been my professional experience. That is rather different from what we find in the Bill. 
 I do not want to take up more of the Committee's time. With your leave, Mr. Cran, I hope that we can put amendment No. 232 to a vote.

Graham Allen: The hon. Member for Beaconsfield has indicated why the public need protection—if only from the lawyers—so that a defendant would have publicly to state why he wanted a judge-only trial. A number of other hon. Members who are lawyers were honest enough to say the same—that the debate is more about
 their dealings with defendants than it is to do with the people for whom parliamentarians pass such legislation. Frankly, that has been a recurring theme throughout our proceedings. Unfortunately, one can almost see a number of colleagues making representations with a client at their side rather than a constituent.
 Having said that—I am sure that we shall get a lot more of it—my hon. Friend the Minister said that he could feel a letter coming on. I take that as an undertaking that a letter will be sent. He generously gave an undertaking that he would think further about the important points raised by all members of the Committee, and I hope that he will consider whether it is necessary to produce something on Report. I hope, too, that the hon. Member for Beaconsfield will not press his amendment to a Division. He will not get anywhere by doing that. I hope that he will try to achieve a consensus with the Government by trying to make sense of the clause for everyone. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 232, in 
clause 36, page 23, line 32, leave out '(6), (7) or (8)'.—[Mr. Grieve.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 3, Noes 14.

Question accordingly negatived. 
 Question proposed, That the clause stand part of the Bill.

Dominic Grieve: The Committee, although I welcome its decision, has decisively rejected the possibility of giving the right to trial by judge alone, free of the Government's exceptions. Therefore, we now must consider the principle of the clause. I do not wish to take up the Committee's time, but two matters stick in my mind forcefully. We have a justice system that has always given the right to trial by jury in either-way offences, which are those that are more serious. Our justice system has also sent for trial by jury those offences that are regarded as serious. There are good reasons for that. Anyone who has practised in the criminal court and has seen the process involved in a Crown court trial derives reassurance from the fact that decisions taken by 12 jurors drawn from the community are difficult to impugn, provided—and this sometimes does not happen—the proper facts and evidence are placed before them.
 In my experience, miscarriages of justice are rarely the jurors' fault, but that of the prosecution or false 
 witnesses, or whoever, who come along and present the jurors with an inaccurate or wrong set of facts. 
 Trial by jury has very desirable social consequences. It is not seen as an adversarial system between the state, through its judicial representatives, and the defendant, but one in which members drawn from the community give the verdict. The matter is difficult to gainsay once it has been done. It therefore provides great reassurance in the way that the justice system operates. It can, very occasionally, lead to some curious decisions—that does not really apply in this instance—where the jury, for reasons that I often find thoroughly proper, sometimes goes against evidence, in favour of defendants. However, I have rarely seen the decision go the other way. I cannot think of a single occasion during my professional practice in which I have considered a jury to have wrongly convicted a defendant. 
 Trial by jury is, therefore, an enormously important part of our national life. One only has to consider the number of people who do jury service in any year to see how important participation in the criminal justice system is in terms of maintaining confidence in justice and belief in its fairness and integrity. 
 The clause drives a very big cart through that principle, and it does so for very muddled reasons. I find it difficult to understand the justification for doing it. What troubles me is that the people who will avail themselves of that protection will do so because it suits them, if the verdict goes against them, to say that it was the verdict of the judge on a technical matter, and to use that as a way out of their own responsibility. 
 There is a big difference between being found guilty by an individual appointed by the state and being found guilty by a group from the community, which has considered the evidence. The message is different and the Minister clearly accepts that, going by the exceptions that the Government have included in the clause. Those exceptions are compelling in raising my anxieties and objections to the clause in its totality. I am, therefore, unconvinced. We have heard nothing about financial arguments or issues, so I take it that that is not a major consideration—

Hilary Benn: It is not a consideration at all.

Dominic Grieve: I am grateful to hear from the Minister that it is not a consideration at all. We have heard nothing about speeding the administration of justice, so that is not a consideration. So we have a strange, hybrid right that will appeal to those who feel that the offences that they have committed, or have been found to have committed, are such that they want to speed their rehabilitation with right-thinking people as quickly as possible by arguing that it was a judge, and no one else, who found them guilty. It will also be favoured by those who wish to appeal, or believe that they can, to the views or prejudices of the judge, as the hon. and learned Member for Redcar (Vera Baird) pointed out. People know about judges' views and prejudices, and they are likely to try to exploit them for their own benefit.

Stephen Hesford: The hon. Gentleman says that we have heard nothing about speed of process. In his experience, do people sometimes opt for a magistrates court trial, contrary to legal advice, because they will get a speedier trial there and they want to get through the process faster than they would by going through the rigmarole of a Crown court trial? A defendant who opts for the process might think that he will have a quicker trial, so we have heard about the speed of trial process; it is one thing that a defendant might want to take into account.

Dominic Grieve: The hon. Gentleman makes an interesting point. The situation varies from time to time, but it is normally easier to get a magistrates court trial, especially for a short matter—something that would take half a day to a day—in front of a stipendiary magistrate, than to go to the Crown court, so that might be a consideration. However, once someone has decided to go to the Crown court, or been sent there, there is no reason to suppose that the pre-trial procedure will be any different in length whether he is being tried by a judge alone or by judge and jury. The only issue is whether the trial might be faster in front of a judge alone, and I accept that there might be marginal time savings in that respect.
 The point is that consideration is not, apparently, what motivated the Government to offer the right. What appears to have motivated them is the view that either system is, from their point of view of supervising the administration of justice, equally satisfactory. That does not persuade me—the exceptions that are placed within that right have most affected my opinion on that matter. For those reasons, I am unable to offer my support. I cannot see the benefits, although I can see an endless series of downsides that result from moving the jury out of the picture for serious offences, in terms of the quality and fairness of justice. 
 I also think that there will be endless public and press comment about the decisions that judges take in deciding whether the rights should be granted or withheld. For every case in which, as the Minister says, the public will be reassured because the right will be withheld, there are bound to be cases in which the judge decides, if he is acting fairly, that the rights should be granted. There will then be copy in all the tabloid newspapers that reads, ''So-and-so has chosen trial by judge alone. Despite representations by the prosecutor to the contrary, judge so-and-so was quite happy to allow this to happen. This is a serious case. It involves child molestation''—or something else very unpleasant—''and concerns a notable personality, but may not be in the gravest catalogue of offences.'' The entire system of justice will be brought into disrepute in the process. 
 I appreciate the motives behind the clause. However, I tell the Minister that I am wholly unconvinced, and that I shall vote against it.

John Mann: I have two reservations on the principle of the clause. I consider every clause in the Bill by asking what it does for my constituents who are hassled by criminal elements or blighted by theft, and I think that the principle of common sense is quite appropriate. I am still waiting to hear what the clause will do for those people.
 My first reservation is that I know of a number of cases—from experience and from reading elsewhere—of attempts by people to use their membership of the freemasons to influence events in court. By dint of its being a secret society, the only attempts that would come to light would be unsuccessful ones. Some commentators who have looked at the issue would suggest that freemasonry has an undue influence in the legal profession. Incidents have been relayed to me directly whereby people have gone to court and indicated clearly their membership of a lodge, in order, one assumes, to influence someone. I am aware of those incidents because the attempts were rebuffed. However, if people feel that they can go to court and do such things, either they are highly misguided or there may on occasion be some truth to the claims that I have mentioned. 
 My second reservation is about an issue that the Minister knows well—he and I have discussed it on a number of occasions—which is the trial of the Leeds United footballers. The club is situated in his constituency. The jury found a Mr. Lee Bowyer not guilty, but I am delighted that Mr. Ridsdale, the chairman of the club, both fined Mr. Bowyer at the time and has now released him, recapturing the legal costs in so doing. I think that those acts were quite appropriate. 
 Mr. Bowyer was found not guilty, so clearly he is not guilty. If he had elected, before a white judge, trial without jury in front of another white judge, and was found not guilty, so that the cause of justice was served in exactly the same way, there would still have been a problem with justice being seen to be done. 
 In questions relating to race—an allegation that underpinned that trial very publicly, both in the city of Leeds and nationally—justice being seen to be done is in some ways as important as justice being done. In such a case, justice is more likely to be seen to be done in a trial by jury, with 12 good people and true from a range of backgrounds, than if a white man goes to a white judge and asks for a trial under another white judge who would reach the same conclusions. That important dynamic needs to be considered. I know that my hon. Friend the Minister is aware of the case, as well as its implications.

Simon Hughes: The hon. Gentleman makes an extremely important point. The Bowyer-Woodgate case was a high-profile case and clearly one in which issues of race and racial attack were central. The reality is that, in most urban areas in England—and certainly in big trials in Cardiff, and to a lesser extent Newport and Swansea—a jury will include at least some members of minority communities. By definition, a jury is a more representative decision-making body than a single judge, because we can hardly claim to have a representative judiciary in terms of either gender or ethnic background, even on the basis of simplistic quotas. It is really important that juries are seen to be representative. However good a job judges do, they are not yet in that category, because if one person from one background, a woman or a man, judges a trial, that provides an additional reason for thinking that justice has not been done.

Ian Lucas: I want to pick up the valid point made by my hon. Friend the Member for Bassetlaw (John Mann). Does the hon. Gentleman agree that subsection (8), which covers the situation when
''the judge is satisfied that exceptional circumstances exist, which make it necessary in the public interest for the trial to be conducted with a jury'',
 would certainly apply in a case such as the Bowyer-Woodgate case? No doubt, guidelines will be put in place in due course to make that clear.

Simon Hughes: The answer is, who knows? We cannot know that that will be the case because the Minister said that it had not been thought necessary to explain the provision and there has been no discussion of guidelines to be approved by Parliament. Guidelines might be issued by the Lord Chief Justice, although they sometimes run into difficulty, as we saw recently. I would far rather trust the more representative jury of 12, and I shall set out the reasons why I share with the hon. Member for Beaconsfield and others the view that we would be unwise to go down the road proposed by the Government.

Paul Stinchcombe: Do not trials such as the Bowyer-Woodgate trial make it clear that there should be exceptions to the right to demand a trial by judge alone? Does not that mean that the issue of principle now is whether we should give the accused that right to seek trial by judge alone? As a Liberal, does the hon. Gentleman believe that the accused should have that right?

Simon Hughes: I do not think that being a Liberal affects the decision terribly.

Paul Stinchcombe: The right to choose.

Simon Hughes: I shall come back to that. On the earlier issue, the difficulty is that people would be even more critical of judges if they said no to an application by a white defendant and yes to one by a black defendant. I can see all sorts of reasons why judges would run into difficulty personally; and they would pilloried as a judge who favoured the black or the Asian community. I shall argue my case, but I think that we are going down a dangerous road.

Dominic Grieve: Is not the other point that it is also grossly unfair to Mr. Bowyer? Why, because he is a celeb, should he be forced to go through trial by jury even though he wants a trial by judge alone, when for an identical offence committed in the same location, two unknowns would be able get trial by judge alone without any difficulty?

Simon Hughes: Exactly. The more one looks at the argument, the more difficulties arise.
 I am absolutely clear that the choice would be made only if we went down the road hinted at by the hon. and learned Lady, and it would be made only at the last minute. As for the point made by the hon. Member for Nottingham, North, it is not a matter of looking after the client—like everyone else, the defendant is a member of the community, and the advocate for the defendant will give them the best advice. We cannot take away the right to make the choice, but it often cannot be made until the very last 
 minute. It would be quite wrong and open to all sorts of argument to do otherwise; it would involve further hearings and would raise human rights issues concerning whether the choice could be exercised only by a certain time or a certain date and in a certain way. 
 The reality is hugely affected by who the judge will be, just as people's decision on whether to plead guilty or whether to appear in the higher or lower court depends on who the magistrate or district judge is. Those real factors come into play every day of the week, and people in Tower Bridge magistrates court decide whether to be tried there or somewhere else depending on their view of the person who regularly sits there as magistrate.

Vera Baird: I am thinking further along the lines helpfully suggested by my hon. Friend the Member for Bassetlaw and followed by others. We seem slightly to be neglecting the rights of victims. A white defendant will inevitably want to exercise his right to be tried by a white judge—there are only two black judges—whereas the main witness, the victim of the crime, is black and will want an open assessment to be made of his credibility to set against the defendant's, so he will want the case to be judged by a cross-section of the community and not by an upper-middle-class white person.
 I obviously bore the Committee by walking into the Room and talking constantly about rape, but one can see easily how the problem is at its highest in such cases. Rape cases raise thorny difficulties about credibility. For instance, if the complainant was a black person and the defendant a white person who, without any of these provisions applying, had elected to go for a non-jury trial, we can see that the mischief would be at its height. I wonder where victims rights are in all this.

James Cran: Order. To help the Committee, I have noticed that interventions are becoming longer and longer and I would remind hon. Members that interventions should be short and sweet.

Simon Hughes: Victims' rights are on the list of issues that I wanted to raise. One of the things that I have argued for—I have lost the argument against lawyers, I have to say, in a different context—is that at the end of a trial but before sentencing, the victim, if he wishes to do so—or if, tragically, the victim is not alive, someone who can speak on his behalf—should be able to put a case to the court in person, just as the defendant can effectively put his case to the court. What we do now has always seemed to me a terrible imbalance. It is frustrating to be with families of victims watching a trial from the public gallery, as they feel entirely excluded from the process. Witness impact statements do not go quite far enough, so I share the hon. and learned Lady's view. On my list is the fact that we are going down a road that appears to give greater additional rights to the defendant than we do to witnesses for the prosecution and victims.
 In the previous debate, for reasons with which I am entirely happy, we did not have the opportunity to 
 vote on clause 36(3) because I did not press my amendment on fair trial criteria. We are now dealing with issues of substance, and I wish to explain why the key reasons for going down that road leave me entirely unpersuaded. 
 Jury trial is incredibly popular and well respected; it is more respected than any trial by judge will ever be. Judgment by lawyer will never be as popular as judgment by lay citizens. There are complex reasons for people opting to have judgment without jury in the lower courts; one is that they are the less serious cases. By definition, they must be, otherwise they would be in the higher courts. 
 In many cases it is ordinary people who sit on the Bench. Of course there are district judges, but my perception is, although I do not have statistics to bear it out, that people will more readily choose the lower court over the higher court if there is a lay Bench than if there is a district judge—a full-time stipendiary. They do so because they think that the case-hardened judge is less likely to be sympathetic than representatives drawn from the local community. There will always be more than one, as the lay magistrates always sit with a minimum of two and normally with three. 
 We should enhance what works, and jury trial works extremely well. It works because it is one of the ways in which the ordinary citizen shares in the process of justice. The hon. Member for Nottingham, North and others keep saying that we are losing contact with what ordinary people want and need. We must be careful to have maximum lay participation in the criminal justice process. There are only two ways in which we can do that: one is to have jury trial as often as possible—real people deciding cases—and the other is to have more lay magistrates. 
 Interestingly—I do not attribute it directly to the Government—under the 18 years of Conservative government, the number of lay magistrates increased, while in the past five years it has fallen. I do not understand why, and I am very unhappy with it. I hope that it is a trend that we can reverse, as we need more lay magistrates, not fewer. 
 Juries have a breadth of experience, as the hon. Member for Bassetlaw said, that judges simply do not have. Jurists come from 12 different walks of life—they come from different backgrounds—whereas the judiciary just ain't like that. A judge is less likely to gain such a breadth of experience the longer he spends in a narrow circle of people. 
 Juries sometimes come to judgments that might technically in law be unexpected—the Ponting case comes to mind. The jury decided that the prosecution was nonsense, so they acquitted. The jury are a safeguard against the law's getting into a stupid position: they come to a common-sense view by argument. There is no evidence that people do not think that jury trial is a very important principle, so moving away from it has risks.

Paul Stinchcombe: I am struggling with the philosophy behind the arguments. As a Liberal, the hon. Gentleman normally believes in the freedom to choose. Surely, even if the Bill were passed
 unamended, Ponting would still have had the right to trial by jury and would still have been acquitted.

Simon Hughes: Of course he would. Let me explain why a Liberal is arguing that a defendant should not have the choice: it will undermine the criminal justice system to have two types of justice in the higher courts. It will be perceived as a two-tier system. There will be a jury trial system, which will give one level of credibility to verdicts, and a lesser—and less credible—system in which people opt for a judge only trial. It will do a fundamental disservice to the criminal justice system. That is why it is in no one's interests and why we should not have the choice—the jury system is better. Why opt for a less good and less authoritative system when we already have a good one?
 I share with the hon. Member for Beaconsfield a strong belief that if a judge makes a decision, criticism of judges will increase. Judges are already criticised for the sentences that they impose, but this will open them to criticism for their decisions. Judges who become known for acquitting often will gain reputations that are unhelpful in that regard and those whose verdicts are decided on the facts and are overturned on appeal will be undermined in a way in which they are not undermined if there is only a variation in the sentence. The situation is different from that in civil cases, in which matters of negligence or suchlike are decided. This is about whether somebody is guilty or innocent. If the Court of Appeal says, as it will do periodically, that a judge got it wrong, the criminal justice system will be seriously unsettled. 
 Some judges come to their jobs having been prosecutors. Inevitably, some will arrive having only ever done prosecutions, and others having only ever done defence work. Judges come with reputations that juries do not have. However much they try, they will not be able to overcome the fact that they have been known as the hammer of the Bailey or whatever, because that will be what they have done for 20 years; a jury is not like that. 
 We know that judges are appointed to conduct particular, serious cases—sometimes they are senior judges, sometimes High Court judges. If the decision as to guilt or innocence is taken by a judge, there might be a suspicion that a particular judge has been chosen for a particular case to get a particular verdict. That cannot be helpful.

Mark Simmonds: Has the hon. Gentleman thought through the point that there might be a perception in the public mind that the separation of the powers between the executive and the judiciary might be undermined for that very reason?

Simon Hughes: That is right. The fact that judges are appointed by the state, and the Lord Chancellor is a member of the Cabinet, so it is a party political appointment—some of us argue that that should not be the case—muddies the waters. It is important to keep the law and order process, both police and courts, separate from any perception of politics, so I share the hon. Gentleman's concern.

Stephen Hesford: Can the hon. Gentleman name one High Court judge, currently sitting, who he thinks would fall into the trap that he has described?

Simon Hughes: Even if I could, I will not, because that would be extremely unfair. There have been judges with reputations for being exceptionally tough. I remember having given evidence of character on behalf of constituents at one of my local Crown courts, where the fact that it has been judge X rather than judge Y has been highly determinative. People used to make choices according to who was the resident judge and who was on duty on a particular day. While I am not going to name names, I can think clearly of judges known to be pro-prosecution and tough, and of others who have a reputation for being in favour of the defendant. If they are considering a sentencing matter, that is one thing, but if such a person, alone, is to make a decision, we are into a different ball game.
 There are cases in which the defendant and others might want to make inquiries about the background of a judge before they made a decision. That will open up the prospect of judges' personal and professional lives, and their financial dealings, having to be in the public domain. That is not good for them and it is not good for the system. 
 I shall cite one or two more cases. Imagine that the defendant was a former senior civil servant or a former or current Member of Parliament, or a former judge or senior public official, who sought trial by judge alone. If the judge acceded to that request and the trial resulted in an acquittal, that could be perceived as the establishment looking after its own. It is a very dangerous route to take and would lead to a large number of appeals. 
 We should remember the experience in Northern Ireland. Of course, the context is different, and we understand why the Diplock courts came into being, but they caused real antagonism in the community. In those circumstances, trial by judge alone was necessary for security reasons, but they have never commanded the same public confidence as jury trials. No one ever wanted that system to continue and people have always been struggling to get back to a system of trial by jury. As the hon. Member for North Down will know from her experience both before and after she came to the House, the confidence of the whole community, across the denominational faith divides, lies in trial by jury. 
 The imbalance in the interests of victims and defendants should properly be taken into account. Although, in a simplistic sense, it might be fair to give the defendant the right to appeal, we know in which sort of cases defendants will choose trial by judge alone. They will be high-profile cases, in which jury trial would be embarrassing, so they will be cases in which judges will be put, most spectacularly, in the dock of public opinion, because they will be sex offences and the like. 
 I note that in other jurisdictions, such as New Zealand and Australia, where the law has been changed to allow the same choice, the law also includes qualifications of a type that we have not discussed. The most serious cases—those for offences with a higher tariff, punishable by a certain number of years' imprisonment—do not qualify for the choice. I would not buy that anyway, but I urge colleagues to be extremely cautious about moving to a system that 
 sounds as if it will deal with cases more efficiently, shorten some trials and be popular with some defendants, but will in fact produce a two-tier justice system, in which good decisions are thought to be made by juries and decisions that are much more readily questioned are made by a judge alone. However competent judges are, such a process is not fair to them. More importantly, it will undermine the whole system. Lay participation in the justice system is central, and not something that defendants would be wise to alter or that they should be given the opportunity to alter, especially in the higher courts.

Paul Stinchcombe: I do not share hon. Members' objections to the principle or philosophy of the clause. It is right that we already have trials by jury and trials by judge alone, in both criminal and civil jurisdictions, and that we already give many accused people the right to choose trial by judge alone. For all the reasons set out in the preliminary reports that resulted in the clause, it seems correct that that right should be extended. If that happens, it is essential that there should be exceptions, fettering the right in the interests of justice or some other public interest. We have debated that in the context of one sort of case, in which race, rather than celebrity, is the determining factor.
 However, the clause gives rise to practical concerns, for which reason I join in the request of my hon. Friend the Member for Nottingham, North for the Minister to think again about at least some of the clause and come back to us with further reassurance, either by letter or on Report. I am especially concerned about the use of the word ''necessary'' rather than the word ''desirable'' in subsection (8), which will have certain consequences. An accused might make an application for trial by judge alone in a case that involves race, an extremely serious offence, or religious prejudice, but the judge might be of the opinion that in the interests of justice it is clearly desirable that the trial should be conducted with a jury. Notwithstanding the fact that the judge comes to that conclusion, he would be prevented by clause 36 from ordering trial by jury. That gives rise to some concern. 
 I believe that a critical practical issue on timing is involved, which I believe would have to be dealt with by the Bill. The reality is that any lawyer will be mindful of which judge is to hear the case before he advises his client whether to exercise the right. Although I share the concerns expressed by my hon. Friend the Member for Nottingham, North, I accept that. If we are not aware of the reality when framing legislation, we will pave the way for miscarriages of justice and all sorts of delays and expense. We should be mindful of that reality and try to legislate to prevent the harm and mischief that could arise.

Humfrey Malins: The clause has excited a great number of people, and principled arguments have been made by both camps. On one hand, the Metropolitan police
 support the principle of the clause; on the other, a respected group such as Justice takes a very different view.
 The General Council of the Bar and the Criminal Bar Association have considered the clause carefully. I was struck by what they said about the defendant's ability to choose trial by judge alone. They feel that it is an area of high principle, but I shall not go into detail, save for one item. They state: 
''We also acknowledge our profound anxiety that if this proposal is implemented, at some later date it may not seem such a great variation to relocate the right to elect for trial by the judge along from the defendant to the judge. This suggested change would undoubtedly pave the way for a future Home Secretary to remove the 'right' to jury trial entirely, leaving it at most as a form of trial that is within the discretion of the judge at the directions hearing.''
 That is something that we will have to watch. One the face of it, plenty of arguments can be made that the clause should not trouble us too much. However, after reading what the Bar Council has to say, one thinks that it may not happen but that it may be the beginning of a move that we would desperately deprecate in the long run. That is a concern that we should all genuinely share. 
 I end on a marginally flippant note. I was listening carefully to the point made about the Leeds United footballer, which reminds me of the trials of some great celebrities in the past few years. I may be wrong, but I am sure that Lester Piggot, Jeremy Guscott—what a great three-quarter he was—Ken Dodd and Bruce Grobbelaar all appeared before juries during the past few years. I have a funny feeling that they were all acquitted, which suggests that they would have been properly acquitted by a judge. However, it is swings and roundabouts, and there are hundreds of thousands of people in this country who, if their great hero came before a jury of which they were a member, would not convict them whatever the charge. I remember saying that about Jeremy Guscott, because it was necessary for him to play in the England trial a few weeks later. 
 I make that flippant point to show that there is an upside and a downside for celebrities. As my hon. Friend the Member for Beaconsfield said, the celebrity who is denied the safeguards of clause 36 because he is a celebrity may be in a difficult position compared with the non-celebrity. It should trouble us that although the clause appears now to give certain rights, and although there are too many problems, the real danger is where it could lead. That is why what the General Council of the Bar said was effective; and we should not ignore it.

Vera Baird: The issue that has latterly come to the fore, which I intended to raise, is the real difficulty—
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.